[Federal Register Volume 73, Number 239 (Thursday, December 11, 2008)]
[Proposed Rules]
[Pages 75376-75381]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29367]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[MM Docket No. 93-177; FCC 08-228]


An Inquiry Into the Commission's Policies and Rules Regarding AM 
Radio Service Directional Antenna Performance Verification

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Commission requests comment on proposed 
new rules to protect AM stations from the potential effects of nearby 
tower construction. The Commission seeks comment on new rules that 
consolidate disparate rules in separate sections regarding tower 
construction near AM stations, and also update these rules by 
incorporating computer modeling techniques.

DATES: Submit comments on or before January 12, 2009 and reply comments 
on or before February 9, 2009.

ADDRESSES: Secretary, Federal Communications Commission, 445 12th 
Street, SW., Washington, DC 20554, http://www.fcc.gov.

FOR FURTHER INFORMATION CONTACT: Peter H. Doyle, Audio Division, Media 
Bureau (202) 418-2700.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second 
Further Notice of Proposed Rule Making (Second FNPRM) in MM Docket No. 
93-177, adopted September 24, 2008, and released September 26, 2008. 
The Commission adopted the Second FNPRM in response to comments 
received regarding an earlier Further Notice of Proposed Rule Making 
(FNPRM) in this proceeding [See 66 FR 20779, April 25, 2001]. The 
complete text of this Second FNPRM is available for inspection and 
copying during normal business hours in the FCC Reference Center (Room 
CY-A257), 445 12th Street, SW., Washington, DC, and may also be 
purchased from the Commission's copy contractor, Best Copy and 
Printing, Inc., (800) 378-3160, 445 12th Street, SW., Room CY-402, 
Washington, DC 20554. The complete text is also available on the 
Internet at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-08-228A1.pdf.

Synopsis of Second Further Notice of Proposed Rule Making

    In AM radio, the tower itself functions as the antenna. 
Consequently, a nearby tower may become an unintended part of the AM 
antenna system, reradiating the AM signal and distorting the authorized 
AM radiation pattern. Thus, our rules contain several sections 
concerning tower construction near AM antennas that are intended to 
protect AM stations from the effects of such tower construction, 
specifically, Sec. Sec.  73.1692, 22.371, and 27.63. These existing 
rule sections impose differing requirements on broadcast and wireless 
entities, although the issue is the same regardless of the types of 
antennas mounted on a tower. Other rule parts, such as Part 90 and Part 
24, entirely lack provisions for protecting AM stations from possible 
effects of nearby tower construction. An ad hoc coalition of radio 
broadcasters, equipment manufacturers, and broadcast consulting 
engineers (``the Coalition'') has proposed that the Commission adopt 
rules to ``harmonize the disparate treatment'' regarding tower 
construction near AM stations, and also to incorporate moment method 
techniques in the analysis of the impact of nearby structures on the AM 
station.
    Existing AM proximity rules governing wireless licensees specify 
fixed distances within which tower construction is presumed to affect 
the AM station. The Coalition's proposal, in contrast, would specify 
critical distances from an AM station in terms of wavelengths at the AM 
frequency, albeit limiting the distance to a maximum of three 
kilometers, as specified in existing rules for wireless licensees. The 
Coalition's proposal designates moment method modeling as the principal 
means of determining whether a nearby tower affects an AM pattern. The 
proposal would, however, allow traditional partial proof measurements 
taken before and after tower construction as an alternative procedure 
when the AM station in question was licensed pursuant to field strength 
measurements. The Coalition proposes to eliminate short towers from 
consideration, with critical tower heights also defined in terms of the 
AM wavelength. Existing rules apply to modification of towers, as well 
as to new tower construction near AM stations. The Coalition's proposal 
would define the types of tower modification that may affect AM 
stations, and would exclude many routine cases in which antennas are 
added to existing towers.
    The Second FNPRM seeks comment on proposed new rules based on those 
suggested by the Coalition, and on the types of towers to which the new 
rules would apply. Specifically, the Second FNPRM asks whether the new 
rules should apply to all towers, including structures that are not 
otherwise subject to Commission licensing processes, i.e., with regard 
to structures such as towers that do not require registration and which 
no Commission licensee or applicant uses or proposes to use. The Second 
FNPRM seeks comment on a number of issues that could establish limits 
on the scope of the new rules, and the technical and/or policy grounds 
for such limits. For example, the Second FNPRM requests comment on the 
criteria used for the exclusion of short towers, and on the 
incorporation in the new rule of a provision requiring tower proponents 
to protect the AM station upon submission of a credible demonstration 
that the tower affects the AM pattern.

Paperwork Reduction Act Analysis

    This document contained proposed information collection 
requirements. The Commission, as part of its continuing effort to 
reduce paperwork burdens, invites the general public and the Office of 
Management and Budget (OMB) to comment on the information collection 
requirements contained in this document, as required by the Paperwork 
Reduction Act (PRA) of 1995, Public Law 104-13. Public and agency 
comments are due February 9, 2009. Comments should address: (a) Whether 
the proposed collection of information is necessary for the proper 
performance of the functions of the Commission, including whether the 
information shall have practical utility; (b) the accuracy of the 
Commission's burden estimates; (c) ways to enhance the quality, 
utility, and clarity of the information collected; and (d) ways to 
minimize the burden of the collection of information on the 
respondents, including the use of automated information collection 
techniques or other forms of information technology. The information 
collection will be submitted to the Office of Management and Budget 
(OMB) for review under Section 3507(d) of the PRA. In addition, 
pursuant to the Small Business Paperwork Relief Act of 202, Public Law 
107-198, see 44 U.S.C. 3506(c)(4), the Commission seeks specific 
comment on how it may ``further reduce the information collection 
burden for small business concerns with fewer than 25 employees.''

[[Page 75377]]

    OMB Control Number: 3060-XXXX.
    Title: Sections 1.30002 and 1.30003, Disturbance of AM Broadcast 
Station Antenna Patterns.
    Form Number: Not applicable.
    Type of Review: New Collection.
    Respondents: Business or other for-profit entities; not-for-profit 
institutions.
    Number of Respondents and Responses: 1,040 respondents; 1,040 
responses.
    Estimated Time per Response: 1-2 hours.
    Frequency of Response: On occasion reporting requirement; third 
party disclosure requirement.
    Obligation to Respond: Required to obtain or retain benefits. The 
statutory authority for this information collection is contained in 
Section 154(i) of the Communications Act of 1934, as amended.
    Total Annual Burden: 1,670 hours.
    Total Annual Cost: $601,800.
    Privacy Act Impact Assessment: No impact(s).
    Nature and Extent of Confidentiality: There is no need for 
confidentiality with this collection of information.
    Needs and Uses: On September 24, 2008, the Commission adopted the 
Second Report and Order and Second Further Notice of Proposed 
Rulemaking in the matter of An Inquiry into the Commission's Policies 
and Rules Regarding AM Radio Service Directional Antenna Performance 
Verification, MM Docket No. 93-177, FCC 08-228. The Second Further 
Notice of Proposed Rulemaking proposes new rules concerning tower 
construction near AM stations.
    In AM radio, the tower itself functions as the antenna. 
Consequently, a nearby tower may become an unintended part of the AM 
antenna system, reradiating the AM signal and distorting the authorized 
AM radiation pattern. Thus, our rules contain several sections 
concerning tower construction near AM antennas that are intended to 
protect AM stations from the effects of such tower construction, 
specifically, Sections 73.1692, 22.371, and 27.63. These existing rule 
sections impose differing requirements on the broadcast and wireless 
entities, although the issue is the same regardless of the types of 
antennas mounted on a tower. Other rule parts, such as Part 90 and Part 
24, entirely lack provisions for protecting AM stations from possible 
effects of nearby tower construction. The proposed new rules would 
consolidate existing rules regarding tower construction near AM 
stations, and would also incorporate moment method techniques in the 
analysis of the impact of nearby structures on the AM station.
    The Commission proposes information collection requirements as 
follows:
    47 CFR 1.30002(a) requires a proponent of construction or 
alteration of a tower within a specified distance of a nondirectional 
AM station, and also exceeding a specified height, to notify the AM 
station at least 30 days in advance of the construction or alteration. 
If the tower construction or alteration would distort the AM pattern, 
the proponent shall be responsible for the installation and maintenance 
of detuning equipment.
    47 CFR 1.30002(b) requires a proponent of construction or 
alteration of a tower within a specified distance of a directional AM 
station, and also exceeding a specified height, to notify the AM 
station at least 30 days in advance of the construction or alteration. 
If the tower construction or alteration would distort the AM pattern, 
the proponent shall be responsible for the installation and maintenance 
of detuning equipment.
    47 CFR 1.30002(c) states that proponents of tower construction or 
alteration near an AM station shall use moment method modeling, 
described in Sec.  73.151(c), to determine the effect of the 
construction or alteration on an AM radiation pattern.
    47 CFR 1.30002(f) states that, with respect to an AM station that 
was authorized pursuant to a directional proof of performance based on 
field strength measurements, the proponent of the tower construction or 
modification may, in lieu of the study described in Sec.  1.30002 (c), 
demonstrate through measurements taken before and after construction 
that field strength values at the monitoring points do not exceed the 
licensed values. In the event that the pre-construction monitoring 
point values exceed the licensed values, the proponent may demonstrate 
that post-construction monitoring point values do not exceed the pre-
construction values. Alternatively, the AM station may file for 
authority to increase the relevant monitoring point value after 
performing a partial proof of performance in accordance with Sec.  
73.154 to establish that the licensed radiation limit on the applicable 
radial is not exceeded.
    47 CFR 1.30002(g) states that tower construction or modification 
that falls outside the criteria described in paragraphs Sec.  
1.30002(a) and (b) is presumed to have no significant effect on an AM 
station. In some instances, however, an AM station may be affected by 
tower construction notwithstanding the criteria set forth in paragraphs 
Sec.  1.30002(a) and (b). In such cases, an AM station may submit a 
showing that its operation has been affected by tower construction or 
alteration. If necessary, the Commission shall direct the tower 
proponent to install and maintain any detuning apparatus necessary to 
restore proper operation of the AM antenna.
    47 CFR 1.30003(a) states that when antennas are installed on a 
nondirectional AM tower the AM station shall determine operating power 
by the indirect method (see Sec.  73.51). Upon the completion of the 
installation, antenna impedance measurements on the AM antenna shall be 
made. If the resistance of the AM antenna changes, an application on 
FCC Form 302-AM (including a tower sketch of the installation) shall be 
filed with the Commission for the AM station to return to direct power 
measurement. The Form 302-AM shall be filed before or simultaneously 
with the filing of any license application covering a broadcast station 
installation.
    47 CFR 1.30003(b) requires that, before antennas are installed on a 
tower in a directional AM array, the proponent shall notify the AM 
station so that, if necessary, the AM station may determine operating 
power by the indirect method (see Sec.  73.51) and request special 
temporary authority pursuant to Sec.  73.1635 to operate with 
parameters at variance in order to maintain monitoring point field 
strengths within authorized limits. For AM stations licensed via field 
strength measurements (see Sec.  73.151(a)), a partial proof of 
performance (as defined by Sec.  73.154) shall be conducted both prior 
to the commencement of construction and upon completion of construction 
to establish that the AM array has not been adversely affected. For AM 
stations licensed via a moment method proof (see Sec.  73.151(c)), the 
proof procedures set forth in Sec.  73.151(c) shall be repeated. The 
results of either the partial proof of performance or the moment method 
proof shall be filed with the Commission on Form 302-AM before or 
simultaneously with any broadcast license application associated with 
the installation.
    Comments on the PRA information collection requirements contained 
herein should be submitted to Cathy Williams, Federal Communications 
Commission, Room 1-C823, 445 12th Street, SW., Washington, DC 20554, or 
via the Internet to [email protected] or [email protected], and to 
Nicholas A. Fraser, Office of Management and Budget (OMB), Desk Office 
via the Internet to [email protected], or via fax at 
(202) 395-5167.

[[Page 75378]]

Supplementary Initial Regulatory Flexibility Analysis

    As required by the Regulatory Flexibility Act, as amended 
(``RFA''),\1\ the Commission has prepared this Supplemental Initial 
Regulatory Flexibility Analysis (``IRFA'') of the possible significant 
economic impact on a substantial number of small entities by the 
policies and rules considered in the Second FNPRM. Written public 
comments are requested on this Supplemental IRFA. Comments must be 
identified as responses to the Supplemental IRFA and must be filed by 
the deadline for comments on the Second FNPRM. The Commission will send 
a copy of the Second FNPRM, including this Supplemental IRFA, to the 
Chief Counsel for Advocacy of the Small Business Administration 
(``SBA'').\2\
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    \1\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601-612, has been 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA), Pub. L. 104-121, 110 Stat. 857 (1996).
    \2\ See 5 U.S.C. 603(a).
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Need For and Objectives of the Proposed Rules

    In May 2007, a coalition of broadcasters, consulting engineers, and 
equipment manufacturers (``Coalition'') submitted a proposal that the 
Commission update and consolidate its disparate rule sections 
concerning tower construction near AM stations. The Coalition's 
proposed new rules for tower construction near AM stations would also 
incorporate moment method modeling techniques similar to those proposed 
for AM proofs of performance. The proposed rules regarding tower 
construction near AM stations, which would apply to all Commission 
licensees who construct towers, would simplify procedures and reduce 
costs. The Second FNPRM seeks additional comment on these proposed 
rules.

Legal Basis

    This Notice is adopted pursuant to Sections 4(i), 303, 612, and 616 
of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303, 
532 and 536.

Description and Estimate of the Number of Small Entities to Which the 
Proposed Rules Will Apply

    The RFA directs agencies to provide a description of, and, where 
feasible, an estimate of the number of small entities that may be 
affected by the proposed rules, if adopted.\3\ The RFA defines the term 
``small entity'' as having the same meaning as the terms ``small 
business,'' ``small organization,'' and ``small governmental entity'' 
under Section 3 of the Small Business Act.\4\ In addition, the term 
``small business'' has the same meaning as the term ``small business 
concern'' under the Small Business Act.\5\ A small business concern is 
one which: (1) Is independently owned and operated; (2) is not dominant 
in its field of operation; and (3) satisfies any additional criteria 
established by the SBA.\6\
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    \3\ 5 U.S.C. 603(b)(3).
    \4\ Id. section 601(3) (incorporating by reference the 
definition of ``small business concern'' in 15 U.S.C. 632). Pursuant 
to the RFA, the statutory definition of a small business applies, 
``unless an agency, after consultation with the Office of Advocacy 
of the SBA and after opportunity for public comment, establishes one 
or more definitions of the term where appropriate to the activities 
of the agency and publishes the definition(s) in the Federal 
Register.''
    \5\ Id.
    \6\ 15 U.S.C. 632.
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    Nationwide, there are a total of approximately 22.4 million small 
businesses, according to SBA data.\7\ A ``small organization'' is 
generally ``any not-for-profit enterprise which is independently owned 
and operated and is not dominant in its field.'' \8\ Nationwide, as of 
2002, there were approximately 1.6 million small organizations.\9\ The 
term ``small governmental jurisdiction'' is defined generally as 
``governments of cities, towns, townships, villages, school districts, 
or special districts, with a population of less than fifty thousand.'' 
\10\ Census Bureau data for 2002 indicate that there were 87,525 local 
governmental jurisdictions in the United States.\11\ We estimate that, 
of this total, 84,377 entities were ``small governmental 
jurisdictions.'' \12\ Thus, we estimate that most governmental 
jurisdictions are small.
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    \7\ See SBA, Programs and Services, SBA Pamphlet No. CO-0028, at 
page 40 (July 2002).
    \8\ 5 U.S.C. 601(4).
    \9\ Independent Sector, The New Nonprofit Almanac & Desk 
Reference (2002).
    \10\ 5 U.S.C. 601(5).
    \11\ U.S. Census Bureau, Statistical Abstract of the United 
States: 2006, Section 8, page 272, Table 415.
    \12\ We assume that the villages, school districts, and special 
districts are small, and total 48,558. See U.S. Census Bureau, 
Statistical Abstract of the United States: 2006, section 8, page 
273, Table 417. For 2002, Census Bureau data indicate that the total 
number of county, municipal, and township governments nationwide was 
38,967, of which 35,819 were small. Id.
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    Wireless Telecommunications Carriers (except Satellite). Since 
2007, the Census Bureau has placed wireless firms within this new, 
broad, economic census category.\13\ Prior to that time, such firms 
were within the now-superseded categories of ``Paging'' and ``Cellular 
and Other Wireless Telecommunications.'' \14\ Under the present and 
prior categories, the SBA has deemed a wireless business to be small if 
it has 1,500 or fewer employees.\15\ Because Census Bureau data are not 
yet available for the new category, we will estimate small business 
prevalence using the prior categories and associated data. For the 
category of Paging, data for 2002 show that there were 807 firms that 
operated for the entire year.\16\ Of this total, 804 firms had 
employment of 999 or fewer employees, and three firms had employment of 
1,000 employees or more.\17\ For the category of Cellular and Other 
Wireless Telecommunications, data for 2002 show that there were 1,397 
firms that operated for the entire year.\18\ Of this total, 1,378 firms 
had employment of 999 or fewer employees, and 19 firms had employment 
of 1,000 employees or more.\19\ Thus, we estimate that the majority of 
wireless firms are small.
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    \13\ U.S. Census Bureau, 2007 NAICS Definitions, ``517210 
Wireless Telecommunications Categories (Except Satellite)''; http://www.census.gov/naics/2007/def/ND517210.HTM#N517210.
    \14\ U.S. Census Bureau, 2002 NAICS Definitions, ``517211 
Paging''; http://www.census.gov/epcd/naics02/def/NDEF517.HTM; U.S. 
Census Bureau, 2002 NAICS Definitions, ``517212 Cellular and Other 
Wireless Telecommunications''; http://www.census.gov/epcd/naics02/def/NDEF517.HTM.
    \15\ 13 CFR 121.201, NAICS code 517210 (2007 NAICS). The now-
superseded, pre-2007 CFR citations were 13 CFR 121.201, NAICS codes 
517211 and 517212 (referring to the 2002 NAICS).
    \16\ U.S. Census Bureau, 2002 Economic Census, Subject Series: 
Information, ``Establishment and Firm Size (Including Legal Form of 
Organization,'' Table 5, NAICS code 517211 (issued Nov. 2005).
    \17\ Id. The census data do not provide a more precise estimate 
of the number of firms that have employment of 1,500 or fewer 
employees; the largest category provided is for firms with ``1000 
employees or more.''
    \18\ U.S. Census Bureau, 2002 Economic Census, Subject Series: 
Information, ``Establishment and Firm Size (Including Legal Form of 
Organization,'' Table 5, NAICS code 517212 (issued Nov. 2005).
    \19\ Id. The census data do not provide a more precise estimate 
of the number of firms that have employment of 1,500 or fewer 
employees; the largest category provided is for firms with ``1000 
employees or more.''
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    Non-Licensee Tower Owners. Many communications towers, while used 
to support multiple antennas for Commission licensees in various 
services, are owned by entities which are not themselves Commission 
licensees. Thus, non-licensee tower owners may be subject to any new or 
additional requirements adopted in this proceeding. Communications 
towers fall into two categories: Those requiring antenna structure 
registration, and those exempt from registration. The Commission's 
rules require that any entity proposing to construct an antenna 
structure over 200 feet or within the glide slope of an airport must 
register the antenna structure with the

[[Page 75379]]

Commission on FCC Form 854.\20\ As of September 3, 2008, there were 
97,617 registration records in a `Constructed' status and 13,047 
registration records in a `Granted, Not Constructed' status in the 
Antenna Structure Registration (ASR) database. This includes both 
towers registered to licensees and towers registered to non-licensee 
tower owners. The Commission does not keep information from which we 
can easily determine how many of these towers are registered to non-
licensees or how many non-licensees have registered towers.\21\ 
Regarding towers that do not require antenna structure registration, we 
do not collect information as to the number of such towers in use and 
therefore cannot estimate the number of tower owners who would be 
subject to the proposed new rules. Moreover, the SBA has not developed 
a size standard for small businesses in the category ``Tower Owners.'' 
Therefore, we are unable to estimate the number of non-licensee tower 
owners that are small entities. We assume, however, that nearly all 
non-licensee tower companies are small businesses under the SBA's 
definition for cellular and other wireless telecommunications 
services.\22\
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    \20\ 47 CFR 17.4(a), 17.7(a).
    \21\ We note, however, that approximately 13,000 towers are 
registered to 10 cellular carriers with 1,000 or more employees.
    \22\ 13 CFR 121.201, North American Industry Classification 
System (NAICS) code 517212. Under this category, a business is small 
if it has 1,500 or fewer employees.
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    Radio Broadcasting. The Small Business Administration defines a 
radio broadcasting entity that has $6.5 million or less in annual 
receipts as a small business.\23\ Business concerns included in this 
industry are those ``primarily engaged in broadcasting aural programs 
by radio to the public. According to Commission staff review of the BIA 
Financial Network, Inc. Media Access Radio Analyzer Database as of May 
1, 2008, 13,457 (about 96 percent) of 13,977 radio stations in the 
United States have revenues of $6.5 million or less. We note, however, 
that in assessing whether a business entity qualifies as small under 
the above definition, business control affiliations \24\ must be 
included. Our estimate, therefore, likely overstates the number of 
small entities that might be affected by any changes to the ownership 
rules, because the revenue figures on which this estimate is based do 
not include or aggregate revenues from affiliated companies.
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    \23\ See NAICS Code 515112.
    \24\ ``[Business concerns] are affiliates of each other when one 
business concern controls or has the power to control the other or a 
third party or parties controls or has the power to control both.'' 
13 CFR 121.103(a)(1).
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    In this context, the application of the statutory definition to 
radio stations is of concern. An element of the definition of ``small 
business'' is that the entity not be dominant in its field of 
operation. We are unable at this time and in this context to define or 
quantify the criteria that would establish whether a specific radio 
station is dominant in its field of operation. Accordingly, the 
foregoing estimate of small businesses to which the rules may apply 
does not exclude any radio station from the definition of a small 
business on this basis and is therefore over-inclusive to that extent. 
An additional element of the definition of ``small business'' is that 
the entity must be independently owned and operated. We note that it is 
difficult at times to assess these criteria in the context of media 
entities, and our estimates of small businesses to which they apply may 
be over-inclusive to this extent.
    FM Translator Stations and Low Power FM Stations. The proposed rule 
could affect licensees of FM translator and booster stations and low 
power FM (LPFM) stations, as well as potential licensees in these radio 
services. The same SBA definition that applies to radio broadcast 
licensees would apply to these stations. The SBA defines a radio 
broadcast station as a small business if such station has no more than 
$6.5 million in annual receipts.\25\ Currently, there are approximately 
5904 licensed FM translator and booster stations and 831 licensed LPFM 
stations.\26\ Given the nature of these services, we will presume that 
all of these licensees qualify as small entities under the SBA 
definition.
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    \25\ See 13 CFR 121.201, NAICS Code 515112.
    \26\ See News Release, ``Broadcast Station Totals as of December 
31, 2007'' (rel. March 18, 2008) (``Broadcast Station Totals'') 
(http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-280836A1.doc).
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    Television Broadcasting. The proposed rule could affect licensees 
of full power, low power, and television translator stations, as well 
as potential licensees in these services. In this context, the 
application of the statutory definition to television stations is of 
concern. The Small Business Administration defines a television 
broadcasting station that has no more than $13 million in annual 
receipts as a small business. Business concerns included in this 
industry are those ``primarily engaged in broadcasting images together 
with sound.'' \27\ According to Commission staff review of the BIA 
Financial Network, Inc. Media Access Pro Television Database as of May 
1, 2008, 1,350 (about 77 percent) of the 1,759 full power television 
stations in the United States have revenues of $13 million or less. 
However, in assessing whether a business entity qualifies as small 
under the above definition, business control affiliations \28\ must be 
included. Our estimate, therefore, likely overstates the number of 
small entities that might be affected by any changes to the attribution 
rules, because the revenue figures on which this estimate is based do 
not include or aggregate revenues from affiliated companies. Currently, 
there are approximately 4,271 licensed TV translator and booster 
stations, 556 Class A television stations, and 2,295 licensed LPTV 
stations.\29\ Given the nature of these services, we will presume that 
all of these licensees qualify as small entities under the SBA 
definition.
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    \27\ OMB, North American Industry Classification System: United 
States, 1997, at 508-09 (1997) (NAICS Code 51320 which was changed 
to 51520 in October 2002). This category description continues, 
``These establishments also produce or transmit visual programming 
to affiliated broadcast television stations, which in turn broadcast 
the programs to the public on a predetermined schedule. Programming 
may originate in their own studio, from an affiliated network, or 
from external sources.'' Separate census categories pertain to 
businesses primarily engaged in produced programming. See id. at 
502-505, NAICS code 512110. Motion Picture and Video Production; 
Code 512120, Motion Picture and Video Distribution, code 512191, 19 
FCC Rcd 15238 (2004). Teleproduction and Other Post-Production 
Services, and code 512199, Other Motion Picture and Video 
Industries.
    \28\ ``[Business concerns] are affiliates of each other when one 
business concern controls or has the power to control the other or a 
third party or parties controls or has the power to control both.'' 
13 CFR 121.103(a)(1).
    \29\ See Broadcast Station Totals.
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    An element of the definition of ``small business'' is that the 
entity not be dominant in its field of operation. The Commission is 
unable at this time and in this context to define or quantify the 
criteria that would establish whether a specific television station is 
dominant in its market of operation. Accordingly, the foregoing 
estimate of small businesses to which the rules may apply does not 
exclude any television stations from the definition of a small business 
on this basis and is therefore over-inclusive to that extent. An 
additional element of the definition of ``small business'' is that the 
entity must be independently owned and operated. It is difficult at 
times to assess these criteria in the context of media entities, and 
our estimates of small businesses to which they apply may be over-
inclusive to this extent.

[[Page 75380]]

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    The Second FNPRM seeks comment on proposed rules that, if adopted 
and implemented, may affect compliance requirements for small entities. 
As noted above, we invite small entities to comment in response to the 
proposed rules. Specifically, the Second FNPRM seeks comment on the use 
of moment method modeling techniques to assess the effect of nearby 
towers on AM radio stations. In AM radio, the tower itself functions as 
the antenna. Consequently, a communications tower erected near an AM 
station may inadvertently become part of the AM antenna system, 
distorting the authorized AM pattern. The Second FNPRM seeks comment on 
new rules which would consolidate the disparate rule sections currently 
in place, simplify the requirements of existing rules, and extend the 
rule to all Commission licensees constructing towers.

Steps Taken To Minimize Significant Economic Impact on Small Entities 
and Significant Alternatives Considered:

    The RFA requires an agency to describe any significant alternatives 
that might minimize any significant economic impact on small entities. 
Such alternatives may include the following four alternatives (among 
others): (1) The establishment of differing compliance or reporting 
requirements or timetables that take into account the resources 
available to small entities; (2) the clarification, consolidation, or 
simplification of compliance or reporting requirements under the rule 
for small entities; (3) the use of performance, rather than design, 
standards; and (4) an exemption from coverage of the rule, or any part 
thereof, for small entities.\30\
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    \30\ 5 U.S.C. 603(c).
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    As noted, we are directed under law to describe any such 
alternatives we consider, including alternatives not explicitly listed 
above.\31\ The Second FNPRM seeks comment on a new method of assessing 
the effects of nearby tower construction on AM stations. We tentatively 
conclude that adoption of these proposed rules would reduce the 
compliance burden on most Commission licensees, and that this reduction 
would be particularly beneficial to small entities. We invite 
commenters to propose steps that the Commission may take to minimize 
any significant economic impact on small entities.
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    \31\ 5 U.S.C. 603(b).
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    The Commission will send a copy of the Second Report and Order and 
Second Further Notice of Proposed Rulemaking, including the 
Supplemental IRFA, to the Chief Counsel for Advocacy of the Small 
Business Administration. A copy of the Second Report and Order and 
Second Further Notice of Proposed Rulemaking, including the FRFA (or 
summaries thereof), will also be published in the Federal Register.\32\
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    \32\ See 5 U.S.C. 604(b).
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List of Subjects in 47 CFR Part 1

    Radio.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Proposed Rules Changes

    For the reasons discussed in the preamble, the Federal 
Communications Commission proposes to amend part 1 of title 47 of the 
Code of Federal Regulations as follows:

PART 1--PRACTICE AND PROCEDURE

    1. The authority citation for part 1 continues to read as follows:

    Authority: 15 U.S.C. 79 et seq.; 47 U.S.C. 151, 154(i), 154(j), 
155, 157, 225, 303(r), and 309.

    2. Subpart AA is added to part 1 to read as follows:

Subpart AA--Disturbance of AM Broadcast Station Antenna Patterns

Sec.
1.30000 Purpose.
1.30001 Definitions.
1.30002 Tower construction or modification near AM stations.
1.30003 Installations on an AM antenna.

Sec.  1.30000  Purpose.

    This rule part protects the operations of AM broadcast stations 
from nearby tower construction which may distort the AM antenna 
pattern. All parties proposing to construct or make a significant 
modification to an antenna tower or support structure in the immediate 
vicinity of an AM antenna, or proposing to install an antenna on an AM 
tower, are responsible for measures necessary to correct disturbances 
of the AM radiation pattern, if such disturbances occurred as a result 
of the tower construction or modification.


Sec.  1.30001  Definitions.

    For purposes of this subpart:
    (a) Wavelength at the AM frequency. In this subpart, critical 
distances from an AM station are described in terms of the AM 
wavelength. The AM wavelength, expressed in meters, is computed as 
follows:
    (300 meters)/(AM frequency in megahertz) = AM wavelength in meters.
    For example, at the AM frequency of 1000 kHz, or 1 MHz, the 
wavelength is (300/1 MHz) = 300 meters.
    (b) Electrical degrees at the AM frequency. This term describes the 
height of a proposed tower as a function of the frequency of a nearby 
AM station. To compute tower height in electrical degrees, first 
determine the AM wavelength in meters as described in paragraph (a) of 
this section. Tower height in electrical degrees is computed as 
follows:
    [(Tower height in meters)/AM wavelength in meters)] x 360 degrees = 
Tower height in electrical degrees.
    For example, if the AM frequency is 1000 kHz, then the wavelength 
is 300 meters, per paragraph (a) of this section. A nearby tower 75 
meters tall is therefore [75/300] x 360 = 90 electrical degrees tall at 
the AM frequency.
    (c) Proponent. The term proponent refers in this section to the 
party proposing tower construction or modification.


Sec.  1.30002  Tower construction or modification near AM stations.

    (a) Construction near a nondirectional AM station. Proponents of 
construction or significant modification of a tower which is within one 
wavelength of the AM station, and is taller than 60 electrical degrees 
at the AM frequency, must notify the AM station at least 30 days in 
advance. The proponent shall examine the potential impact of the 
construction or modification as described in paragraph (c) of this 
section. If the construction or modification would distort the 
radiation pattern by more than 2 dB, the licensee shall be responsible 
for the installation and maintenance of any detuning apparatus 
necessary to restore proper operation of the nondirectional antenna.
    (b) Construction near a directional AM station. Proponents of the 
construction or significant modification of a tower which is within the 
lesser of 10 wavelengths or 3 kilometers of the AM station, and is 
taller than 36 electrical degrees at the AM frequency, must notify the 
AM station at least 30 days in advance. The proponent shall examine the 
potential impact of the construction or modification as described in 
paragraph (c) of this section. If the construction or modification 
would result in radiation in excess of the AM station's licensed 
standard pattern or augmented standard pattern values, the licensee 
shall be

[[Page 75381]]

responsible for the installation and maintenance of any detuning 
apparatus necessary to restore proper operation of the directional 
antenna.
    (c) Proponents of construction or significant modification of a 
tower within the distances defined in paragraphs (a) and (b) of this 
section of an AM station shall examine the potential effects thereof 
using a moment method analysis. The moment method analysis shall 
consist of a model of the AM antenna together with the potential 
reradiating tower in a lossless environment. The model shall employ a 
simplified version of the methodology specified in Sec.  73.151(c) of 
this chapter. The AM antenna elements may be modeled as a series of 
thin wires driven to produce the required radiation pattern, without 
any requirement for measurement of tower impedances.
    (d) A significant modification of a tower in the immediate vicinity 
of an AM station is defined as follows:
    (1) Any change that would alter the structure's physical height by 
5 electrical degrees or more at the AM frequency.
    (2) The addition of one or more antennas or a transmission line to 
a tower that has been detuned or base-insulated.
    (e) The addition or modification of an antenna or antenna 
supporting structure on a building shall not be considered significant.
    (f) With respect to an AM station that was authorized pursuant to a 
directional proof of performance based on field strength measurements, 
the proponent of the tower construction or modification may, in lieu of 
the study described in paragraph (c) of this section, demonstrate 
through measurements taken before and after construction that field 
strength values at the monitoring points do not exceed the licensed 
values. In the event that the pre-construction monitoring point values 
exceed the licensed values, the proponent may demonstrate that post-
construction monitoring point values do not exceed the pre-construction 
values. Alternatively, the AM station may file for authority to 
increase the relevant monitoring point value after performing a partial 
proof of performance in accordance with Sec.  73.154 of this chapter to 
establish that the licensed radiation limit on the applicable radial is 
not exceeded.
    (g) Tower construction or modification that falls outside the 
criteria described in the preceding paragraphs is presumed to have no 
significant effect on an AM station. In some instances, however, an AM 
station may be affected by tower construction notwithstanding the 
criteria set forth above. In such cases, an AM station may submit a 
showing that its operation has been affected by tower construction or 
alteration. If necessary, the Commission shall direct the tower 
proponent to install and maintain any detuning apparatus necessary to 
restore proper operation of the AM antenna.


Sec.  1.30003  Installations on an AM antenna.

    (a) Installations on a nondirectional AM tower. When antennas are 
installed on a nondirectional AM tower the AM station shall determine 
operating power by the indirect method (see Sec.  73.51 of this 
chapter). Upon the completion of the installation, antenna impedance 
measurements on the AM antenna shall be made. If the resistance of the 
AM antenna changes, an application on FCC Form 302-AM (including a 
tower sketch of the installation) shall be filed with the Commission 
for the AM station to return to direct power measurement. The Form 302-
AM shall be filed before or simultaneously with the filing of any 
license application covering a broadcast station installation.
    (b) Installations on a directional AM array. Before antennas are 
installed on a tower in a directional AM array, the proponent shall 
notify the AM station so that, if necessary, the AM station may 
determine operating power by the indirect method (see Sec.  73.51 of 
this chapter) and request special temporary authority pursuant to Sec.  
73.1635 of this chapter to operate with parameters at variance in order 
to maintain monitoring point field strengths within authorized limits. 
For AM stations licensed via field strength measurements (see Sec.  
73.151(a) of this chapter), a partial proof of performance (as defined 
by Sec.  73.154 of this chapter) shall be conducted both prior to the 
commencement of construction and upon completion of construction to 
establish that the AM array has not been adversely affected. For AM 
stations licensed via a moment method proof (see Sec.  73.151(c) of 
this chapter), the proof procedures set forth in Sec.  73.151(c) of 
this chapter shall be repeated. The results of either the partial proof 
of performance or the moment method proof shall be filed with the 
Commission on Form 302-AM before or simultaneously with any broadcast 
license application associated with the installation.

 [FR Doc. E8-29367 Filed 12-10-08; 8:45 am]
BILLING CODE 6712-01-P